The Court of Appeal judgment in Unite the Union v Alec McfAdden [2021] EWCA Civ 199 highlights the needs for a party, responding to an appeal, to file a Respondent’s Notice if it wants to argue there are additional, or alternative, grounds for upholding the decision being appealed.


The case related to an appeal on the issue of res judicata in internal proceedings. The respondent raised some issues in the skeleton argument but no Respondent’s Notice was served.  The respondent applied for permission to file a Notice after the hearing.  Relief from sanctions was required.



    1. Since the only ground of appeal advanced by Mr Segal must, in my view, succeed, it is therefore necessary to consider the Respondent’s alternative arguments as to why the appeal should be dismissed. Those arguments were set out in a skeleton argument dated 6 March 2020 but there was no Respondent’s Notice inviting this Court to uphold the decision of the EAT on different or additional grounds.
    1. It is important that proper procedures should be observed, and it is, in my view, necessary for there to be a Respondent’s Notice. After this was raised by the Court at the hearing, one was filed on the day after the hearing, 22 January 2021. After the hearing we received written submissions from both parties as to whether, and to what extent, we should permit reliance to be placed on the grounds set out in the Respondent’s Notice.


Application to file Respondent’s Notice out of time
    1. The well known principles for relief from sanctions apply in substance to an application for an extension of time in which to file a Respondent’s Notice: see Salford Estates (No 2) Ltd v Altomart Ltd (Practice Note) [2014] EWCA Civ 1408[2015] 1 WLR 1825. Those principles were set out by this Court in Denton v TH White Ltd (Practice Note) [2014] EWCA Civ 906[2014] 1 WLR 3926. In summary, they require the court to consider three stages: first, the seriousness of the breach of the court’s rules; secondly, the reason for that breach; and, thirdly, all the circumstances of the case so as to deal with the application justly.
    1. In the present case, in my view, the failure to file a Respondent’s Notice in time is important: it is certainly not trivial although it is not of the most serious kind either. I can see no good reason for that failure: it simply seems not to have been appreciated that a Respondent’s Notice was required until the Court pointed this out at the hearing before us. Nevertheless, when considering all the circumstances of the case, it is important to bear in mind that the Respondent did file a skeleton argument some 10 months before the hearing. In substance that skeleton argument raised additional reasons as to why this appeal should be dismissed which had not been given by the EAT. Furthermore, Mr Segal fairly accepted that he was able to deal with those submissions and indeed did so at the hearing before us. In those circumstances, I have reached the conclusion that this Court should grant the application for an extension of time to file the Respondent’s Notice, until 22 January 2021. I would limit it to those matters which had already been raised in the skeleton argument.
    1. In particular, as Mr Segal concedes, this includes the opening words of para. 8 of the grounds in the Respondent’s Notice:
“The learned Judge ought, additionally, to have held that the determination of the first disciplinary tribunal was the determination of a quasi-judicial body, which could thus properly found a cause of action estoppel.”
  1. In addition, I would grant permission to file the Respondent’s Notice insofar as it reflects submissions which had already been made in the skeleton argument, that is paras. 1-6, to the extent that they invite this Court to dismiss the appeal for reasons different from, or additional to, those which the Judge gave.


The rule is set out in CPR 52.13.

Respondent’s notice

(1) A respondent may file and serve a respondent’s notice.
(2) A respondent who—
(a) is seeking permission to appeal from the appeal court; or
(b) wishes to ask the appeal court to uphold the decision of the lower court for reasons different from or additional to those given by the lower court,
must file a respondent’s notice.
(3) Where the respondent seeks permission from the appeal court it must be requested in the respondent’s notice.
(4) A respondent’s notice must be filed within—
(a) such period as may be directed by the lower court; or
(b) where the court makes no such direction, 14 days after the date in paragraph (5).
(5) The date referred to in paragraph (4) is—
(a) the date the respondent is served with the appellant’s notice where—
(i) permission to appeal was given by the lower court; or
(ii) permission to appeal is not required;
(b) the date the respondent is served with notification that the appeal court has given the appellant permission to appeal; or
(c) the date the respondent is served with notification that the application for permission to appeal and the appeal itself are to be heard together.
(6) Unless the appeal court orders otherwise, a respondent’s notice must be served on the appellant and any other respondent—
(a) as soon as practicable; and
(b) in any event not later than 7 days,
after it is filed.